# Ashotosh Kumar Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 848
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-30
- **Case number:** WRIT A No. 4070 of 2020
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashotosh-kumar-srivastava-ors-v-state-of-u-p-ors-45809
- **Pages:** 8

## Headnote

A. Education/Service Law - Recruitment
- Each candidate necessarily must bear
the consequences of his failure to fill up
the application form correctly. (Para 20)
The error committed by the candidates cannot
be said to be human in nature. The petitioners
should have read the instructions that were
issued time and again and should have
correctly filled the entries relating to the marks
obtained
by
them
in
their
previous
examinations. The contention that this was an
error committed by the Computer Operator
cannot simply be accepted. If the Courts were
to accept such a plea of the petitioners, then
this would result in a situation where the
petitioners would get the benefit of a wrong if
the wrong claim went unnoticed and if noticed
the petitioners could always turn around and
claim that this was a result of a human error.
The error/errors committed by the petitioners
are neither minor nor are human error/errors.
(Para 11, 20)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

848 INDIAN LAW REPORTS ALLAHABAD SERIES
origin
of
Government
Service
is
contractual but on appointment on a post
or office, the person so appointed
acquires a 'Status'. Then his rights and
obligations are determined by statute or
statutory rules which may be framed and
may be altered unilaterally by the
Government. Similar view has been taken
by Hon'ble Supreme Court in Roshanlal
Tandon Vs. Union of India AIR 1967
SC 1889 at 1894 approved in Union of
India Vs. Tulsi Ram Patel AIR 1985 SC
1416 at 1437. Thus petitioners can not get
benefit of old pension scheme which was
abolished
much
prior
to
their
appointments. The Old Pension Scheme
was not part of the rules governing
conditions of service of the petitioners.

13. For all the reasons aforestated, I
do not find any merit in this writ petition.
Consequently,
the
writ
petition
is
dismissed. However, there shall be no
order as to costs.
----------
(2020)06ILR A848
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE
THE HON'BLE PRAKASH PADIA, J.

WRIT A No. 4070 of 2020

Ashotosh Kumar Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Seemant Singh, Sri Pankaj Kumar

Counsel for the Respondents:
C.S.C., Sri P.D.Tripathi

A. Education/Service Law - Recruitment
- Each candidate necessarily must bear
the consequences of his failure to fill up
the application form correctly. (Para 20)
The error committed by the candidates cannot
be said to be human in nature. The petitioners
should have read the instructions that were
issued time and again and should have
correctly filled the entries relating to the marks
obtained
by
them
in
their
previous
examinations. The contention that this was an
error committed by the Computer Operator
cannot simply be accepted. If the Courts were
to accept such a plea of the petitioners, then
this would result in a situation where the
petitioners would get the benefit of a wrong if
the wrong claim went unnoticed and if noticed
the petitioners could always turn around and
claim that this was a result of a human error.
The error/errors committed by the petitioners
are neither minor nor are human error/errors.
(Para 11, 20)

Writ petition dismissed. (E-4)

Precedent followed:

1.
Km.
Richa
Pandey
Vs
Examination
Regulatory Authority & anr., Special Appeal
Defective No. 117 of 2014 decided on
18.02.2014 (Para 12)

2. Ram Manohar Yadav Vs St. of U.P. and 3
ors., Special Appeal No. 834 of 2013 decided
on 30.05.2013 (Para 13)

3. Arti Verma Vs St.of U.P. & 2 ors., (2014)
ILR 1 All 145; 2014 (104) ALR 154 (Para 14)

4. Kanchan Bala & 172 ors. Vs St. of U.P. & 4
ors., 2018 (4) ADJ 264; 2018 (2) ALJ 689
(Para 15)

5. Jai Karan Singh & 52 ors Vs St. of U.P. & 4
ors., Special Appeal No. 90 of 2018 (Para 16,
19)

6. Karnataka Public Service Commission & ors.
Vs B.M. Vijaya Shankar & ors., AIR 1992 SC
952 (Para 17)

Precedent distinguished:

1. Satyendra Kumar Shukla Vs St. of U.P. &
ors., Writ Petition No. 21117 of 2018 (Para 7)
6 All. Ashotosh Kumar Srivastava & Ors. Vs. State of U.P. & Ors. 849
2. Sachin Sharma & ors. Vs State of U.P. &
ors., Writ Petition No. 19162 of 2018) (Para 7)

3. Km. Archana Rastogi Vs State of U.P. &
ors., 2012 (3) ADJ 219 (Para 7)

(Delivered by Hon'ble Prakash Padia, J.)

1. During lockdown period keeping
in view the (COVID-19) pandemic, this
case has been listed today in my chamber
under the order of Hon'ble the Chief
Justice.

2. Heard Sri Seemant Singh, learned
counsel for the petitioner and Sri M. C.
Chaturvedi, learned Additional Advocate
General/learned Senior Counsel assisted
by Sri Suresh Singh, learned Additional
Chief Standing Counsel and Sri Rajesh
Kumar Mishra, and Sri Vijay Shanker
Mishra, learned Standing Counsel for the
State and Sri P. D. Tripathi, learned
counsel
for
the
respondent-Basic
Education
Board
through
Video
Conferencing.

3. The petitioner has preferred the
present writ petition inter-alia with the
following prayer-

"(a) Issue a writ, order or direction
in the nature of Mandamus directing the
respondents to accord an opportunity to
rectify the incorrect entries made by the
petitioners in their online application forms of
Assistant Teacher Recruitment Examination
2019
submitted
before
the
Secretary,
Examination Regulatory Authority, U.P.
Prayagraj relating to the details of different
education qualifications.

(b) Issue a writ, order or direction
in the nature of Mandamus directing the
respondents to consider the petitioners on the
basis
of
their
original
educational
testimonials in the instant selection of 69000
posts of Assistant Teacher to be appointed in
different Primary Schools of different districts
of the State of Uttar Pradesh initiated vide
Government Order dated 01.12.2018 issued
by
the
Additional
Chief
Secretary,
Government of U.P., Lucknow."

4. The facts in brief as narrated in the
writ petition are that the petitioners applied for
Assistant Teacher Recruitment Examination2019. The petitioners duly appeared in the
examination on 06.01.2019 and the result was
declared on 12.05.2020 in which all the
petitioners have been declared qualified
having
obtained
the qualifying
marks
prescribed by the respondents. The petitioners
have committed some human errors with
regard to filling of their B.Ed marks inclusive
of B.Ed. Theory and Practical, with regard to
filling of B.Ed Roll Numbers, with regard to
filling of marks of Graduation, High School
and Intermediate and with regard to filling of
marks relating to 2 year B.T.C. Training
Course.

5.

Learned
counsel
for
the
petitioners argued that the aforesaid
human
errors
crept
in
the
online
application forms of the petitioners
submitted by them online at the official
website of the respondents. It is further
argued that the mistakes committed by the
petitioners are only human error. It is
further argued that the direction be given
to the concerned authority to decide the
representation made by the petitioners as
has been done in several cases by the
different Coordinate Benches of this
Court.

6. In paragraph 6 of the writ
petition,
it
is
contended
that
the
petitioners no.1 to 45 are having the
qualification of B.Ed, petitioners no.46 to
60 are having the qualification of two
850 INDIAN LAW REPORTS ALLAHABAD SERIES
years
B.T.C.
Training
Course
and
petitioner no.61 is having a qualification
of D.Ed. and as such all the petitioners are
fully eligible to apply for the examination
in question. It is further stated in the writ
petition that in the notification dated
12.5.2020
all
the
petitioners
were
declared qualified having obtained the
qualifying marks in their respective
category. The applicants, who have been
declared qualified in the examination are
eligible to apply further online application
forms for the appointment on the post of
Assistant Teachers to be appointed in
different primary schools of different
districts in the state of U.P. It is further
stated in the writ petition that while
submitting the online application forms
for appointment on the post of Assistant
Teacher, the petitioners will be required
to mention their marks of the examination
in question and the preference of district
but the petitioners cannot make any
change or correction with regard to the
alleged incorrect entries made by them
with
regard
to
their
educational
testimonies.

7.

Learned
counsel
for
the
petitioners also relied upon the two
judgements delivered by two different
Coordinate Benches of this Court in the
following cases :-

(i) Writ Petition No.21117 of
2018 (Satyendra Kumar Shukla Vs. State
of U.P. and others.)

(ii) Writ Petition No.19162 of
2018 (Sachin Sharma and others Vs. State
of U.P.

Apart from the same, learned
counsel for the petitioners also relied
upon a Division Bench judgement of this
Court in Special Appeal No.2312 of 2011
(Km. Archana Rastogi Vs. State of U.P.
and others) reported in 2012 (3) ADJ
219 decided on 13.1.2012.

8. In view of the same it is
contented by learned counsel for the
petitioners that once any mistake has
committed by the petitioners, the same
should be rectified. In this regard the
petitioners
have
also
submitted
representations to the Basic Education
Board
Prayagraj
on
08.05.2020,
12.5.2020 and 17.3.2010. Copies of the
said
Representative
are
appended
collectively as Annexure-7 to the writ
petition.

9. From perusal of the facts as
narrated above it appears that all the
petitioners
committed
mistake
while
filling up their application forms. The
basic mistakes were committed in respect
of the marks adjudicated to them
pertaining
to
B.Ed
Examination,
(Practical as well as Theory).

10. It further appears from perusal
of the chart appended along-with the writ
petition (Annexure 5 to the writ petition)
that the petitioner no.1, Ashutosh Kumar
Srivastava obtained 582 marks out of
1000 in respect of his B.Ed Examination
but in the application form it is stated by
him that out of total 400 marks he
obtained 250 marks. It further appears
from perusal of the chart that the
petitioner no.2, Ajendra Singh obtained
682 marks out of 1115 in theory and 494
marks out of 635 in practical pertaining to
his
B.Ed
examination
but
in
the
application form it is mentioned by him
that he obtained 759 marks out of 1215 in
respect of theory and 418 marks out of
535 in respect of practical examination.
6 All. Ashotosh Kumar Srivastava & Ors. Vs. State of U.P. & Ors. 851
Almost
the
similar
mistakes
were
committed by all the petitioners.

11. From perusal of the record, the
Court is of the opinion that the aforesaid
mistakes are not a kind of human error
but deliberately and willfully mistakes
were committed by the petitioners while
filling up their application forms.

12. This issue has also been
examined in Special Appeal Defective
No.117 of 2014 ( Km. Richa Pandey v.
Examination Regulatory Authority and
Another) decided on 18.02.2014. The
relevant observation is as follows:-

"The OMR sheets are provided
to the candidates to speed up evaluation
through help of computer. In case we
accept the argument of learned counsel
for the petitioner that the language in
which the petitioner had written essay
could be checked up by the examiner
before
feeding
answer
book
into
computer, the entire process of expediting
the results will be lost. Where OMR
sheets are to be examined with aid of the
computer, it is not advisable and
practical to direct that each OMR sheet
should be checked by the examiners and
the columns, which have not been filled
up may be filled up by the examiner
himself with the aid of the language used
by the candidates for writing essay. We
are informed by Standing Counsel that
about
seven
lacs
candidates
had
appeared in the test.

With such large number of
candidates
appearing
in
TET
Examination 2013 it would not have been
possible nor it was feasible for examiners
to look into the answer sheets individually
before feeding them into computer for
correcting any mistakes.

We agree with the reasoning
given by the learned Single Judge that
where the applicant is not capable of
correctly filling up the form, she is not
entitled to any discretionary relief from
the Court.

The
special
appeal
is
dismissed."

13. In Special Appeal No.834 of
2013 (Ram Manohar Yadav v. State of
U.P. and 3 Ors.) decided on 30.05.2013,
the Division Bench of this Court observed
as follows:-

"We are not inclined to interfere
in
this
special
appeal
because
interference in such matters would result
in thoroughly incompetent or utterly
negligent persons becoming teachers and
spoiling the future of the children whom
they will teach.

If prospective teacher can not
even correctly fill up the simple on line
application form for his employment, it is
obvious what he is going to teach if
appointed. There are certain decisions
cited on this issue. But none of them deal
with this aspect whether under the
discretionary jurisdiction of the Court
under Article 226 of the Constitution of
India such incompetent persons should be
allowed to play with the future of the next
generation.

Therefore, we are of the opinion
that the petitioner/appellant should wait
till he attains sufficient maturity and
learns to be more careful in filling up the
applications for jobs. The appeal is
therefore, dismissed."

14. In Special Appeal Defective
No.123 of 2014 (Arti Verma v. State of
U.P. and 2 Ors.), a Division Bench of this
Court observed that:-
852 INDIAN LAW REPORTS ALLAHABAD SERIES

"The appellant made an on-line
application for engagement as Shiksha
Anudeshak (Arts) for 2012-13 on a
contract basis. In the application, the
appellant claimed to have belonged to the
Freedom Fighters' category, which was
admittedly not the category to which the
appellant could have claimed. The name
of the appellant was shown in the select
list of candidates belonging to the
Freedom
Fighters'
Category.
The
Secretary
to
the
State
Government
rejected the representation filed by the
appellant for correcting the error in the
on line application. The learned Single
Judge dismissed the petition filed by the
appellant under Article 226 of the
Constitution for setting aside the order
passed by the Secretary noting that under
the declaration given by the appellant
while filling up the application, it was
stated that the candidature could be
rejected if any discrepancy was found.
The learned Single Judge has also relied
upon a judgment of the Division Bench
rendered in Ram Manohar Yadav Vs.
State of U.P. & three Ors., (Special
Appeal-834 of 2013).

In the judgment of the Division
Bench in Ram Manohar Yadav (supra) it
was observed that where an applicant has
shown his incompetence or negligence in
not not even correctly filling up a simple
on line application form for employment,
interference of the High Court under
Article 226 of the Constitution was not
warranted.

However,
learned
counsel
appearing on behalf of the appellant
relied upon a judgment of a Division
Bench in Puspraj Singh Vs. State of U.P.
& Ors., (Special Appeal-75 of 2013).
That is a case where the appellant had
wrongly described himself as a female
candidate. On these facts, the Division
Bench accepted the contention that
human error had caused an incorrect on
line entry, since there was no reason for
the appellant to make such a declaration
and that he did not stand to gain anything
by making such an incorrect entry.

In
the
present
case,
the
appellant claimed the benefit of Freedom
Fighters category. The contention that
this was as a result of an error committed
by the Computer Operator cannot simply
be accepted for the reason that the
appellant
would
necessarily
be
responsible for any statement which he
made on line. If the Courts were to accept
such a plea of the appellant, that would
result in a situation where the appellant
would get the benefit of a wrong category
if the wrong claim went unnoticed and if
noticed, the appellant could always turn
around and claim that this was as a result
of
human
error.
Each
candidate
necessarily must bear the consequences
of his failure to fill up the application
form correctly. No fault can, therefore, be
found in rejecting the application for
correction when the candidate himself
has failed to make a proper disclosure or
where, as in the present case, the
application is submitted under a wrong
category. Interference of the High Court
under Article 226 of the Constitution is
clearly not warranted in such matters as
it creates grave uncertainty since the
selection process cannot be finally
completed. Moreover, in the present case,
the appointment was of a contractual
nature for a period of eleven months.
Hence, considering the matter from any
perspective, the learned Single Judge was
not in error in dismissing the petition
under Article 226 of the Constitution.

The
Special
Appeal
is,
accordingly,
dismissed."
6 All. Ashotosh Kumar Srivastava & Ors. Vs. State of U.P. & Ors. 853

15. This Court cannot permit
another window of argument as an
alternative one to grant an appropriate
relief
of
alternative
remedy
of
representation prayed for. Even otherwise
this Court has already taken view in Writ
- A No. 841 of 2018 (Kanchan Bala &
172 Ors v. State of U.P. & 4 Ors) thus:-

"23. The Court has proceeded
to examine the record in question and
found that clear instructions were given
in the first page of question booklet
directing the candidates to correctly fill
up the OMR sheet and any error
committed by the candidate cannot be
corrected by the authority. The petitioners
could
not
successfully
mark
the
circle/bubble
on
the
answer
sheet
showing correct registration number, roll
number, booklet series or language-II
attempted. Consequently, the result of the
petitioners have been declared as invalid
registration number/roll number. After
the declaration of the result in question,
they have proceeded to make a request
that the correction is required. It is too
late in the day to make such request by
the petitioners, inasmuch as, OMR sheet
is examined by the computer on the basis
of columns that have been filled up by an
incumbent and, in view of this, once final
result has been declared and there is no
provision to carry out any correction in
the OMR sheet, then no relief can be
accorded to the petitioners, especially
keeping in view the dictum of Division
Bench of this Court in Smt. Arti Verma
Vs. State of U.P. & others and the
judgment of learned Single Judge in Ritu
Chauhan's case (supra), wherein once the
Division Bench as well as learned Single
Judge had already rejected the similar
arguments as well as the claim set up by
the candidates appeared in the TET-2013,
2016 and 2017, then there is no reason or
occasion for this Court to take a different
view in the matter.

24. The Court is also conscious
that in the garb of minor discrepancy for
rectifying such human error in the OMR
sheet, the Court cannot give any liberty to
the respondent to intervene in the matter
at this stage, which would also have very
serious consequence for the fairness of
entire selection. Coupled with the above, I
am clearly of the view that the action
taken by the respondent is neither
arbitrary
nor
illegal.
In
such
circumstances,
it
is
not
legally
permissible to interfere with the decision
of the respondent."

16. The said judgment has come to
be affirmed in Special Appeal No. 90 of
2018 (Jai Karan Singh And 52 Ors v.
State of U.P. And 4 Ors.) in following
terms:

"The error committed by the
candidates cannot be said to be minor in
nature. It is the Registration Number, Roll
Number that determines identity of the
candidates. The candidates who appeared
in the examination were mature students
and were to be appointed as Assistant
Teachers in institution. They should have
read the instructions that was issued time
and again and should have correctly
filled the entries relating to Roll Number,
Registration Number, Question Booklet
Series and Language attempted. The
entries were, however inaccurately filled
as a result of which the scanner has not
been able to process the result.

The
learned
Judge
was,
therefore, justified in dismissing the writ
petitions.
The
Special
Appeal
is,
accordingly, dismissed."
854 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The law in this connection is
also well settled by the Supreme Court in
the case of Karnataka Public Service
Commission and Ors. Vs. B. M. Vijaya
Shankar and Ors. reported at AIR 1992
SC 952. The Supreme Court was pleased
to hold that the Competitive examinations
are required to be conducted by the
Commission for public service in strict
secrecy to get the best brain. It was held
that the instructions contained in the
answer-sheet should be complied with in
its letter and spirit. The operative portion
of the aforesaid judgment is quoted
below:-

"Competitive examinations are
required
to
be
conducted
by
the
Commission for public service in strict
secrecy to get the best brain. Public
interest requires no compromise on it.
Any violation of it should be visited
strictly. Absence of any expectation of
hearing in matters which do not affect
any interest and call for immediate
action, such as the present one, where it
would have delayed declaration of list of
other candidates which would have been
more unfair and unjust are rare but well
recognised exceptions to the rule of
natural justice. It cannot be equated with
where a student is found copying in the
examination or an inference arises
against him for copying due to similarity
in answers of number of other candidates
or he is charged with misconduct or
misbehavior. Direction not to write roll
number was clear and explicit. It was
printed on the first page of every answer
book. Once it was violated the issue of
bonafide and honest mistake did not
arise. Its consequences, even, if not
provided did not make any difference in
law.
The
action
could
not
be
characterised as arbitrary. It was not
denial of equal opportunity. The reverse
may be true."

18. In so far as the cases cited by the
learned counsel for the petitioners are
concerned, the same will not help the
petitioners since in large number of cases
observations were duly made by different
Division Benches of this Court that in
case any mistake was committed by the
candidates
during
the
course
of
examination, the writ court will not
interfere in the matter.

19. In so far as the Division Bench
judgement cited by the counsel for the
petitioners are concerned, the aforesaid
judgement has already been dealt with by
another Division Bench of this Court in
Special Appeal No. 90 of 2018 (Jai
Karan Singh And 52 Ors v. State of U.P.
And 4 Ors.). The following observations
were made by the Division Bench in the
aforesaid case :-

"Likewise, in Archana Rastogi
v. State of U.P. and Others reported in
2012 (3) ADJ 219, the appellant had
mentioned the marks obtained in the High
School as '256' whereas he had actually
obtained
'356'.
It
is,
in
such
circumstances, the Court directed marks
could be corrected. Here also, there was
only one candidate and no process by
electronic
scanning
had
been
undertaken."

20. The error committed by the
candidates cannot be said to be human in
nature. The petitioners should have read
the instructions that were issued time and
again and should have correctly filled the
entries relating to the marks obtained by
them in their previous examinations. The
contention
that
this
was
an
error
6 All. Ram Sanehi & Ors. Vs. State of U.P. & Ors. 855
committed by the Computer Operator
cannot simply be accepted. If the Courts
were to accept such a plea of the
petitioners, then this would result in a
situation where the petitioners would get
the benefit of a wrong if the wrong claim
went unnoticed and if noticed the
petitioners could always turn around and
claim that this was a result of a human
error. Each candidate necessarily must
bear the consequences of his failure to fill
up the application form correctly. From
perusal of the record, I am of the opinion
that the error/errors committed by the
petitioners are neither minor nor are
human error/errors.

21. In view of the facts as narrated
above as well as the law laid down by the
differnt Division Bench of this Court
from time to time as well as by the Apex
Court, no relief could be granted to the
petitioners.

22. The writ petition is dismissed.
----------
(2020)06ILR A855
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

WRIT A No. 4178 of 2003

Ram Sanehi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri W.H.Khan, Sri Gulrez Khan, Sri
J.H.Khan

Counsel for the Respondents:
C.S.C., Sri C.P. Awasthi, Sri J.N. Maurya,
Sri P. Awasthi.
A.
Service
Law
-
Selection/Appointment/Regularization -
U.P.
Regulation
of
Daily
Wages
Appointments on Group 'D' Posts Rules,
2001; U.P. Group 'D' Employees Service
Rules, 1985: Rules 4(i), 9(3) - If there is
no provision for regularization the same
cannot be directed - Selection is not found
to be vitiated on account of nepotism and
favouritism, as alleged by the petitioners, in
absence of any material on record. No
illegality could be found in the selection in
question. Court held that it is not a case of
regularization
since
selection
and
appointments have already been made. Unless
those appointments have been nullified,
petitioners cannot claim any benefit. (Para 13,
15, 56, 57)

B. U.P. Group 'D' Employees Service
Rules, 1985: Rules 4(i), 19(3) -
"Retrenched Employees" - No provision
in Rules, 1985 has been shown providing
any preference to be given to petitioners
on account of the fact that they have
worked as daily wage employees or
otherwise
in
the
Department.
Some
weightage
has
been
provided
for
"retrenched employees" but petitioners do
not satisfy the definition of "retrenched
employees". (Para 16)

C. Words & Phrases - "Preference" - A
mere rule of preference meant to give
weightage to the additional qualification
cannot
be
enforced
as
a
rule
of
reservation
or
rule
of
complete
precedence - U.P. Police Headquarters,
Allahabad
vide
order
dated
30.11.2002
directed to give preference for regular
appointment to persons who were already
working but question of preference arise only
when all other things are satisfied and
preference cannot be treated as right of
appointment to exclusion of others. Petitioners
could not be given preference if other
candidates performed better. (Para 6, 34 to
37)

Writ Petition dismissed. (E-4)

Precedent followed: